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Requests for admissions should be accompanied by a separate interrogatory that says something like this: "To the extent that any of your responses to any of Defendant's requests for admissions is other than an unqualified admission, list all facts on which you based any part of your response that is not an unqualified admission, identify all documents memorializing each such fact, and identify all persons with knowledge of each such fact."

To my mind, it's this interrogatory that's one of the most useful parts of the request-for-admissions procedure. By changing the interrogatory slightly, you can also use it to discover documents and deponents concerning admissions.

We're talking about 30(b)(6) depositions or their state-court equivalents. As a plaintiffs' lawyer, I've always taken the position (usually in Illinois state-court cases) that these do provide a "second bite at the apple." In other words, if I serve a notice for a corporate-rep deposition, and XXX Corp. makes Mr. Squirrely available to testify about my list of topics, I figure I can still depose Mr. Squirrely at a later date as an individual witness.

Defense counsel sometimes complains about this, but I've never had anyone go so far as to file a motion. So after a bit of belly-aching, Mr. Squirrely gets produced a second time.

Anyone interested in this issue should see the article "Organizational Depositions: Do They Allow a Second Bite at the Apple?" by David Markowitz, reprinted at the website of Markowitz Herbold PC. According to the Markowitz, the second-bite issue "has increasingly been raised in federal litigation under Rule 30(b)(6)." Markowitz then surveys the state of the law.

Can lawyers ask leading questions during federal-court depositions? If so, when?

Under federal rules, the examination and cross-examination of witnesses during depositions proceeds “as permitted at trial.” Fed.R.Civ.P. 30(c). This means that the propriety of leading questions is determined just as it would be at trial.

The issue of leading questions at trial is the subject of Federal Rule of Evidence 611(c)—

Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, and adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

To determine whether leading questions are permitted at a federal-court deposition, ask yourself the following questions:

Is the leading question in direct or cross-examination? The lawyer who noticed the deposition and who starts asking questions first is doing the direct examination; other lawyers are cross-examining. Under Rule 611(c), leading questions are permitted during cross-examination.

If the leading question is begin asked during direct, is there another permissible reason for it, such as the development of the witness’s testimony or the fact that the witness is adverse to the questioning lawyer? If not, leading questions are impermissible under Rule 611(c).

In real-life practice, of course, lawyers will ask leading questions during depositions even when they aren’t strictly permissible, waiting to see whether you object. When you are the examining lawyer, you can take the same approach—ask leading questions when you want unless and until the other side objects.

An objection to a leading questions is a form objection that is waived unless it is made at the time the question is asked. See Fed.R.Civ.P. 32(d)(3)(A) (“Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time”) (emphasis added).

Because they’re impatient to get it out of the way, some lawyers turn the standard preliminary deposition questions into a speech:

Hi, I’m Bill Smith. I represent the plaintiff and I’m here to ask you some questions today. As you probably know, you’re under oath today and sworn to tell the truth. I’m here today to try to find out some basic information. If you don’t understand one of my questions, please let me know. And let me know if you want to take a break. Okay?

What’s wrong with this approach? One of the purposes of the preliminary questions is to make a record that the deponent is fully aware of the way the deposition works. This record might be important at trial if you need to use the deposition to impeach the witness. An example:

Q. You remember when I took your deposition on January 22, 2008?

Q. You remember you were sworn to tell the truth?

Q. And I told you that even though we were in an informal setting around a conference table, your testimony had the same force and effect as if we were in trial before a judge and jury?

Q. I asked you if you were prepared to answer my questions truthfully?

Q. And you answered “yes”?

. . .

Though you won’t often conduct this sort of cross-examination, you won't even have the option if you start the deposition with a muddy record. Rather than make a speech at the start of a deposition, ask questions or make statements followed by "Okay?" or "Do you understand?" This will give you short "impeachment nuggets" that you can use later, if necessary.

For more on preliminary deposition questions, see the following posts:

Requests for Admissions are sort of the red-headed stepchild of the discovery process. Interrogatories and Requests for Production get all the attention in law school and CLEs, while poor Requests for Admissions (RFAs) sit in the corner, never asked to dance.

After explaining the basics, Lee writes some sample requests for admission based on an imagined defamation case. Lee concludes, "Take the time to look for discovery guides in your jurisdiction that provide instructions and advice on how to maximize your use of RFAs."